Category: Backlogs

🤯GARLAND BIA’S SLOPPY WORK, ANTI-ASYLUM SLANT CONTINUES TO ROIL WATERS IN NORMALLY PRO-GOV 5TH CIR!

Dan Kowalski reports for LexisNexis Immigration Community:

Yahm v. Garland, unpublished, 5th Cir., 05-31-22

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60914.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-credibility-remand-yahm-v-garland#

“Elvis Njenula Yahm, a citizen of Cameroon facing removal, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his pro-Anglophone political opinion. An immigration judge denied all three avenues for relief, and the Board of Immigration Appeals (BIA) dismissed Yahm’s appeal. … A recent decision supports Yahm’s view that an adverse credibility finding does not relieve the agency of its obligation to also consider documentary support for a CAT claim. See Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). … Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive. See Arulnanthy, 17 F.4th at 598. Yahm’s petition for review is GRANTED and these proceedings are REMANDED for the BIA to address the CAT claim consistent with Arulnanthy.”

[Hats off to Keith S. Giardina!]

 

*******************

Way to go, Keith! Congrats! Winning justice for asylum seekers in the 5th Circuit is no mean feat!

The 5th Circuit decision in Arulnanthy sounds very much like the 4th Circuit’s decision in Camara v. Ashcroft, 378 F. 3d 361 (4th Cir. 2004). Camara actually changed for the better the preparation, presentation, and most of all results in asylum cases in the 4th Circuit.

I consider it the “precursor” to the REAL ID provision now incorporated in the INA requiring IJ’s and the BIA to consider the “the totality of the circumstances, and all relevant factors,” in making credibility determinations. If that is actually done, which it isn’t in far too many cases in today’s broken Immigration Courts, the results are likely to be far more positive for asylum seekers and other respondents seeking relief in Immigration Court.

The “Camara effect” was real. For example, in 2004, on the “eve of Camara,” the asylum denial rate at the Arlington Immigration Court, where I sat, in the 4th Circuit, was in excess of 70%. By the time I retired in 2016, it was the polar opposite. The asylum grant rate exceeded 70%! SOURCE: TRAC Immigration.

Of course, no one factor is responsible for that positive change. And, I acknowledge that in the Charlotte Immigration Court, also in the 4th Circuit, where several judges were reknowned for their hard-core anti-asylum attitudes, the denial rates remained disturbingly above the national average. And, of course, the “institutionalized anti-asylum bias” ushered in and promoted at EOIR by the Trump regime resulted in another dramatic, totally unjustified, downturn in asylum grants by EOIR across America after 2016.

Nevertheless, positive appellate guidance on asylum is a major factor in establishing and maintaining due process in the Immigration Courts. Unfortunately, almost none of that expert positive guidance on asylum and other forms of relief comes from Garland’s BIA precedents. Additionally, although some of his appointments have been welcome, overall, Garland has done a very poor job of bringing in dynamic progressive expert leaders and judges to reverse the anti-asylum, anti-due-process, anti-immigrant “culture” that continues to haunt EOIR at all levels. 

The “results” of his dysfunctional courts speak for themselves. Backlogs build, Circuit Courts struggle with EOIR’s poor “haste makes waste” work product, and decisional consistency on asylum is shockingly, “tragicomically” lacking! 

In almost all ways, this system has seriously regressed in the past decade, even while eating up more resources! That’s about as much of an “engineered lose-lose” as one can imagine! Yet, Biden, Harris, and Garland appear impervious to this glaring, “fixable” problem that threatens our entire justice system!

Meanwhile, could even the conservative judges of the 5th Circuit be tiring of substandard work product inflicted on them by Garland’s dysfunctional EOIR? Reprehensibly, this is by no means the first “bogus asylum denial” by Garland’s EOIR involving a Cameroonian claim to be soundly rejected by the 5th. https://immigrationcourtside.com/2022/05/20/%f0%9f%8f%b4%e2%98%a0%ef%b8%8fassembly-line-injustice-eoir-most-conservative-u-s-circuit-court-faults-bogus-asylum-denial-for-cameroonian-that-garlands-doj-defended/

Shouldn’t racial justice advocates be all over Garland, Monaco, Gupta, and Clarke for the EOIR’s disgraceful performance on asylum claims involving Cameroonians and other applicants of color! If not, why not? The entire “progressive social justice community” should be expressing “collective outrage” to the Biden Administration about the Garland DOJ’s disgraceful performance at EOIR and on other human rights issues involving race and immigration.

It’s also worthy noting, as my Round Table colleague retired Judge Jeffrey Chase has pointed out before, that the Biden Administration has granted TPS to Cameroonians in the U.S.  So, there is really no issue about the truly miserable human rights conditions there. That is, apparently, except in Garland’s Immigration Courts where the “programmed to deny” and “good enough for government work” mentalities continue to prevail — even where the stakes are life or death!

Additionally, the regulations implementing the Convention Against Torture (“CAT”) at EOIR initially became effective on Mar. 22, 1999  — over two decades ago. I remember that at one of the next Immigration Judge Conferences, probably in 1999 or 2000, the training specifically instructed that because of the country-conditions related nature of CAT, adverse credibility rulings against a respondent were not determinative of CAT claims.

Yet, more than two decades later, Immigration Judges and, worse yet, the BIA are still making that same fundamental error! How does this make the idea that EOIR is an “expert court” or that “constitutional due process is being protected at EOIR” anything other than a “sick joke.” Yet, the mockery of justice continues and nobody at Justice, from the top down, is being held accountable for stomping on life-determining legal and Constitutional rights! Why?

🇺🇸Due Process Forever!

PWS

06-01-22

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. 🏴‍☠️👎🏽BIA BLOWS DUTY TO ADJUDICATE CAT, OIL MISREPRESENTS RECORD BEFORE CIRCUIT — Latest 5th Cir. Reject Shows Festering Competence & Ethical Problems @ Garland’s DOJ!🤮 — The BIA Ignores Matter of L-O-G-, But YOU Shouldn’t!
  3. ☠️👎🏽GARLAND EOIR’S DISTURBINGLY BAD ANALYSIS IN YET ANOTHER ASYLUM CASE “OUTED” BY FIRST CIRCUIT! — Lopez Troche v. Garland
  4. ⚖️5TH CIRCUIT BELATEDLY “OUTS” IJ AGNELIS REESE (NOW RETIRED) FOR 99.5% ASYLUM DENIAL RECORD —  “We find it likely that a ‘reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.’” Inexplicably Garland & Co. Let Other “Asylum Deniers Club” Members Continue to Wreak Havoc On Asylum Seekers, Their Lawyers, & The Entire U.S. Justice System!🤮

🗽🧑🏻‍⚖️ BIA APPELLATE JUDGES LIEBOWITZ, BROWN, MANUEL WITH STRONG REVERSAL OF HIGH-DENYING IJ IN FIFTH — Nexis, PSG — Roberto Blum Reports!  — “This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent,” Says Says Brooklyn Law Associate Dean Stacey Caplow!

 

Roberto writes:

Hello Judge,

Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.

P.S. you can see this news article:  https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ ,  from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

Best,

DPF!

RB 

pastedGraphic.png

Here’s the panel decision:

BIA APPEAL REMAND (Redacted)

****************

Thanks, Roberto.

As Roberto says:

This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!

Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?

I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?

Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!

The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.

It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?

Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers! 

Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?

These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”

When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.

The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.

Stacy Caplow
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law
Brooklyn Law
PHOTO: Brooklyn Law website

As Dean Caplow cogently points out:

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/the-pathos-of-patel-v-garland

While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!

As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!

There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”

Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence). All of us who care about the future of American justice should be asking why he isn’t doing his job!

🇺🇸 Due Process Forever!

PWS

05-31-22

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. 🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

☠️👎🏽DEM’S CATASTROPHIC DUE PROCESS FAILURE:  AS PREDICTED, GARLAND’S “DEDICATED DOCKETS” ARE “ASYLUM FREE ZONES” TARGETING CHILDREN!🤮

“Floaters”
Garland’s vision of “justice” for refugee children appears to be little different from that of Stephen Miller and his White Nationalist predecessors at DOJ!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Cindy Carcamo
Cindy Carcamo
Immigration Reporter
LA Times

Cindy Carcamo reports for the LA Times: 

BY CINDY CARCAMO STAFF WRITER

MAY 25, 2022 11:56 AM PT

After drug traffickers killed his little brother, William and his 6-year-old son, Santiago, fled Colombia last September to seek asylum in the United States.

Unbeknownst to William, who ended up in Los Angeles with a friend, he and his son immediately became part of a cohort of thousands of families in a “dedicated docket” program that the Biden administration established in 11 cities, including Los Angeles, in May 2021.

In response to a sudden rise of apprehensions last spring of families and children at the Southwest border, Biden promised the accelerated docket would resolve cases “more expeditiously and fairly.” These sorts of programs have existed in various forms under previous administrations; Biden’s program pushes immigration judges to resolve cases in 300 days, significantly shorter than the 4.5-year average of asylum cases in immigration court.

But according to a new Center for Immigration Law and Policy at UCLA Law report, the docket’s fast-track timeline has imposed new hardships on many asylum seekers and created additional obstacles that ultimately lead to higher rates of deportation orders, sometimes based on legal technicalities.

For William — who didn’t want his last name published, fearing reprisal against his family still living in Colombia — the docket’s expeditious nature meant he had only six weeks to secure legal representation before his first court hearing, leaving him to navigate a complex and often confusing system without an attorney. Immigration officials provided him with documents heavy with legal jargon in English. He could read only in Spanish.

In addition, those on the docket are released with “alternatives to detention,” which means they are monitored, either with an ankle bracelet or via a phone application. Immigration officials shackled William with a GPS monitor on his ankle before releasing him and his son.

Ultimately, an immigration judge ordered William and his 6-year-old to be deported in “absentia” when they didn’t show up for their court hearing at U.S. Immigration Court in downtown Los Angeles. In fact, at the time the judge gave the order, William was in the building, but was three floors below the courtroom in a waiting area at the direction of an Immigration and Customs Enforcement official. By the time William was told he was in the wrong place, the judge had already ordered the father and son’s removal from the U.S.

In Los Angeles, an estimated 99% of the 449 cases completed on the dedicated docket as of February of this year resulted in removal orders and about 72% of those cases were issued to people who missed their court hearing — “in absentia” — according to a report released Wednesday by the Center for Immigration Law and Policy and Immigrants’ Rights Policy Clinic at UCLA School of Law

Perhaps most striking, the report shows that almost half of those in absentia removal orders are for children, many 6 and younger.

In addition, court data analyzed in the report show that an estimated 70% of people on this particular docket don’t have legal counsel. In contrast, an estimated 33% of those on the Los Angeles court’s non-accelerated docket lack legal counsel.

The nature of the accelerated dockets made it nearly impossible for asylum-seekers to get a fair hearing, the report’s authors concluded. The high absentia rate, the report concluded, is a red flag that the dedicated docket isn’t working as it should.

. . . .

**********************

Read the rest of Cindy’s totally disturbing article at the link!

Sadly, this news will come as no surprise to readers of “Courtside.” Having watched these types of  efforts to co-opt the Immigration Courts as a vehicle of unfair, racially motivated “deterrence” and “enforcement,” I could see that this program was going to be an unmitigated disaster at EOIR, given Garland’s failure to install progressive judicial leadership and human rights and due process expertise into the broken and biased system he inherited from Sessions and Barr.

The NDPA is going to have to “dig in” and fight Garland and Mayorkas every step of the way, at every level of the system, to save as many lives as possible from their disgraceful continuation of a “Miller Lite” White Nationalist, anti-immigrant program of abusing and dehumanizing asylum seekers — most individuals of color and many of them children or other “vulnerable individuals.” 

🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!

PWS

05-26-22

Related posts:

  1. 🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”
  2. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!

🗽⚖️🇺🇸UYGHUR ACTIVIST SAVED BY GW IMMIGRATION CLINIC!  

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera

Please join me and Professor Vera in congratulating Immigration Clinic client, T-Y-, from China, and his student-attorneys, Gisela Camba, Esder Chong, Jordan Nelson, Tessa Pulaski, and Julia Yang. The client’s asylum application was filed on April 6, 2018, his interview at the Asylum Office was on November 8, 2021, and he was granted asylum on May 17, 2022. We received the decision today. The above-captioned is what T-Y- said upon learning about his asylum grant.

T-Y- is a Muslim Uyghur, an ethnic and religious minority in China. Due to his decades-long work as an Uyghur activist, he was persecuted by the Chinese government. T-Y- was falsely imprisoned, sentenced to a ‘re-education camp’, physically and psychologically tortured, and had his movements restricted and monitored. Despite everything he has endured, T-Y- continues his Uyghur advocacy work from within the United States and has even consulted with U.S. politicians and government agencies about the treatment of Uyghurs in China.

**************************************************

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

*******************************

Congratulations! Another job REALLY well done by Professors Benitez and Vera and their band of NDPA recruits at GW Law.

As Jason “The Asylumist” Dzubow says, lots of winnable cases out there if folks can get well-qualified representation and actually reach a merits determination before the Asylum Office or EOIR — no mean feat in such a backlogged system!

That raises the point of why wouldn’t a clearly well-prepared and grantable Uyghur case like this one be moved to the “front of the line” for expedited processing instead of sitting around for more than four years?

For years, both USCIS and EOIR have been “expediting” the wrong cases (known as “Aimless Docket Reshuffling”) in an ill-advised and failed attempt to use the legal asylum system as a “deterrent” by maximizing and prioritizing “anticipated denials.” Instead, they should be putting protection and excellence in preparation and advocacy first. It would actually free up more representation resources if advocates weren’t forced to “babysit” “ready for prime time” cases for years! 

During that time, records must be constantly updated, memories fade, and witnesses can become unavailable. Attorneys on both sides move on. Judges retire. There are all sorts of “below the radar screen” costs to creating and maintaining a huge backlog. Unfortunately, it promotes the “refugee roulette” image of what is supposed to be a fair, expert, timely system (but isn’t).

In addition, many of the “haste makes waste” attempts to cut corners by prejudging and denying certain cases, or creating “defective in absentias” end up being reopened or remanded because of sloppy, substandard work.  

What is the Government’s “vision” of how this system can be made to work in a fair and timely manner for all concerned?

🇺🇸Due Process Forever!

PWS

05-25-22

Related posts:

  1. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  2. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. ⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

POLITICS: KURT BARDELLA @ LA TIMES: WHAT “DEMS DON’T GET” THREATENS AMERICAN DEMOCRACY☠️: “They should do what the Republicans would do given a chance: Refuse to compromise and go on the attack. This difference, of course, is that the Democrats are going after the insurrectionist machine and defending democracy while the GOP is tearing it down.”

 

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=8323fc34-a52b-46ef-9c44-5be1f107c380

By Kurt Bardella

The question I get asked the most as someone who went from being a Republican to a Democrat is: “What’s the biggest difference between the two parties?”

The answer: Every impulse Democrats have is defensive and every impulse Republicans have is offensive.

A report in the Washington Post this week showed these dynamics at play perfectly between Democrats and Republicans on the House Jan. 6 select committee. As the Post described, Democratic Rep. Stephanie Murphy (Fla.) insisted that the committee focus less on former President Trump and more on the security and intelligence failures that allowed the attack on the Capitol. In response, Republican Vice Chair Liz Cheney (Wyo.) argued that the committee should keep its focus on the former president.

This is the best illustration I have come across that demonstrates how different Republicans and Democrats approach things on a tactical and, I’d say, cellular level.

When Republicans have the reins of power, they do not hesitate to go after the very top. From Barack Obama’s birth certificate to Hillary Clinton’s emails and potentially Hunter Biden’s laptop, the GOP is unapologetic about pursuing witch hunts for political gain.

Democrats, on the other hand, are always pursuing lines of legitimate oversight reluctantly. At times, it feels like they are apologizing for doing the right thing.

I think back to Trump’s first impeachment and the hesitant posture displayed by the Democrats during those proceedings. It was almost as if they were forced into it, regretted that it came to this, and moved as fast as possible to get it over with.

Democrats controlled the House majority but never forced Trump administration officials with firsthand knowledge of the events that were at the center of the impeachment inquiry to testify, such as John Bolton, Mick Mulvaney or Rick Perry, and the Republican-controlled Senate predictably torpedoed any effort to compel them to testify.

History repeated itself during Trump’s second impeachment as firsthand witnesses like Mike Pence, Mark Meadows, Jared Kushner, Ivanka Trump, Rudolph W. Giuliani, etc., were never called to testify. Hillary Clinton, of course, was grilled by the Republican-led Benghazi committee for more than 11 hours.

It’s almost as if Democrats believe there is some prize awaiting them for showing what they would characterize as restraint. There isn’t.

. . . .

*********************

Read the complete article at the link.

This has been obvious in the Dems’ feckless approach to Immigration, and particularly the Immigration Courts, over the years. 

Without enacting any significant legislation, the GOP instituted an overtly racist/nativist/restrictionist program. They negated existing laws, scorned the Constitution, abrogated log-standing international agreements, and aggressively and blatantly stacked the Federal Judiciary at all levels with far-right zealots. And they have gotten away with it!

Yet, even after successfully running on programs promising a restoration of the rule of law and the Constitution in immigration and human rights, Dems have been from feckless, to timid, to complicit in the GOP’s vile programs. 

The GOP did not hesitate to “stack” the Immigration Court system at all levels with questionably qualified judges who lacked perspective, expertise, and a commitment to due process. The result was a dramatic plunge in the grant rates for asylum seekers, even though conditions in the primary sending countries have continued to worsen dramatically over the years. 

No justification for what the GOP did, and no hesitation or self-doubts about doing it! Amid tons of criticism, they just plowed ahead and did it! They “played to the most extreme elements of their base” — nobody else! They weren’t scared to take extreme actions that most polls showed the majority of American’s didn’t favor!

By contrast, the Dems approach to immigration and human rights policy is a complete mess. And, worst of all, the Immigration Courts and EOIR remain largely as the Trump regime left them. Indeed, the backlog is growing at an astounding rate, as Garland flails and fails to bring on board the “best and brightest” judges and intellectual leaders to reform EOIR into the due-process oriented “model judiciary” that it was once intended to be! 

🇺🇸Due Process Forever!

PWS

05-22-22

Related posts:

  1. 🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”
  2. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  3. 🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership!  — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

⚖️👩🏽‍⚖️NOLAN RAPPAPORT @ THE HILL: THE EOIR BACKLOG IS GETTING WORSE — GARLAND DOES NOT APPEAR TO HAVE THE ANSWER — I’m Quoted In The Article!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill

Immigration courts are overrun with cases, and it’s only getting worse  

Nolan Rappaport, opinion contributor

The immigration court has a backlog of more than 1.7 million cases. This means that the number of people waiting for a hearing is larger than the population of Phoenix, Ariz., or of Philadelphia, Pa., the fifth and sixth largest cities in the United States.

 

This isn’t a new problem, but it has gotten much worse recently. According to TRAC, a data distribution organization at Syracuse University, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration when it was “only” close to 1.3 million cases.

 

What is the administration doing to reduce the backlog?

 

Hiring more judges: Recent administrations have prioritized hiring more judges to lower the backlog. From fiscal 2014, to fiscal 2021, the number of judges has more than doubled, rising from 249 to 559. At the end of the first quarter in fiscal 2022, there were 578.

 

According to the Congressional Research Service, the backlog probably would continue to grow even if 100 more judges were hired. An additional 200 could reduce the backlog to just under 1.1 million, but it wouldn’t reach that level until fiscal 2031. It would take an additional 500 judges to eliminate the backlog entirely, and it wouldn’t happen until fiscal 2030.

 

Accelerated dockets: In May 2021, DHS announced a “dedicated docket” program to “more expeditiously and fairly” render decisions in the cases of certain families who are apprehended after making an illegal entry.

 

These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” program. This program currently is monitoring more than 227,508 families and single individuals.

 

The Florence Project claims that the Obama and Trump administrations attempted these “dedicated dockets” to reduce the backlog and it not only failed, but led to widespread due process violations and undermined access to legal counsel.

 

The Vera Institute of Justiceopposes the program because it “forces newly arriving, asylum-seeking families through rushed ‘rocket docket’ court proceedings without guaranteeing legal representation for all, depriving families of fairness and due process.”

 

In any case, it just speeds up the processing of new additions to the immigration court caseload.  It does nothing to reduce the size of the backlog, and it is very unfair to migrants who have been waiting for a hearing for up to five years.

 

It also may hamper efforts to reduce the backlog. Georgetown law school professor Paul Schmidt points out that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases.

 

Read more at https://thehill.com/opinion/immigration/3492751-immigration-courts-are-overrun-with-cases-and-its-only-getting-worse/

 

Published originally on The Hill.

 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://nolanrappaport.blogspot.com

******************

Go over to The Hill at the above link to read the complete article.

Thanks Nolan for continuing to “shine the light” on this critical issue that might appear to be “below the radar screen” but actually threatens  the stability of our entire legal system!⚖️

As I’ve said many times, Aimless Docket Reshuffling (“ADR”), engaged in to some extent by Administrations of both parties, is NOT the answer. It’s a huge part of the problem!

🇺🇸Due Process Forever!

PWS

05-21-22

Related posts:

  1. NO EXPERTISE NECESSARY! – At The “New EOIR,” Immigration Judges No Longer Need to Demonstrate Immigration Experience – Just a Willingness To Send Migrants to Potential Death, Danger, or Misery Without Due Process or Fundamental Fairness – When Your Job Is To Impose Arbitrary “Death Sentences,” Maybe It’s Easier If You Don’t Understand What You’re Really Doing!
  2. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  3. 🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘
  4. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

🤮INEFFECTIVE ASSISTANCE/DEFECTIVE COURTS — 3rd Cir. Exposes Massive Due Process Failure @ Garland’s EOIR! — St. Ford v. A.G.

 

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

From Judge Roth’s opinion:

The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers.

 

Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

Arckange Saint Ford will get a second shot at canceling the Government’s order of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full.

But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing.

. . . .

Here, though it was reasonable to request Saint Ford corroborate his testimony about the identity and motive of his harassers, the IJ did not tell him what corroboration she needed or give him a chance to present that evidence. There is no indication she engaged in the Abdulai inquiry as required before skipping straight to “hold[ing] the lack of corroboration against [Saint Ford].” Id. (alterations adopted). She went from first to third across the pitcher’s mound. Our Abdulai inquiry is there to ensure these important corners aren’t cut.

**************

What’s wrong with this picture? Going on two decades after the enactment of the REAL ID Act, this IJ gets basic corroboration wrong on a life or death asylum case. Then, she compounds the error by failing to apply a two-decades old circuit precedent. The case sails through the BIA. Then, Garland’s OIL defends the indefensible. “Corner cutting” has become institutionalized, permitted, and even encouraged in today’s broken  EOIR!

Meanwhile, it’s left to Circuit Judge Ambro to do the jobs of Garland, his failed BIA, and an IJ badly in need of remedial training! This is an expert tribunal? This is justice? This is due process? Gimmie a break! 

This is squarely on Garland! He enables and defends defective, due-process-denying decisions by EOIR. His grotesque failure to appoint and empower a BIA that will end this nonsense and insist on competent legal performance from ALL Immigration Judges in these life or death cases is disgraceful!

Cases like this also “give lie” to the bogus claims that today’s EOIR is comprised of “experts” who can be trusted to remedy due process defects, model best practices, or (perhaps most absurdly) insure that the rights of all respondents, including the unrepresented, are protected. Why is a Dem Administration running a “due process denial machine?” Why is OIL defending the indefensible? Why is Garland still the AG, despite showing little interest and scant skill in creating a due process/fundamental fairness oriented tribunal at the “retail level” of our staggering justice system! 

You don’t have to be a “rocket scientist” to trace the disrespect for the Constitutional, statutory, and human rights of migrants, largely individuals of color, to hate crimes, misogyny, curtailment of voting rights, and disrespect for equal justice and racial justice throughout our nation. The stunningly poor performance of the U.S. Immigration Courts under Garland also sets an unfortunate tone for the staggering and highly politicized Federal Court system from bottom to top!

🇺🇸 Due Process Forever!

PWS

05-19-22

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  3. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

⚖️IMMIGRATION COURTS: Article I Bill Passes Out Of House Judiciary On Party Line Vote!

 

From ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2022/05/bill-creating-independent-immigration-court-passes-in-house.html

ImmigrationProf Blog

Saturday, May 14, 2022

Bill creating independent immigration court passes in House

By Immigration Prof

After years of advocacy from theNational Immigration Judges Association (here and here), immigration attorneys (from ABA and AILA), and scholars, Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA), introduced the Real Courts, Rule of Law Act of 2022 (H.R. 6577) that has passed House Judiciary Committeewith a vote of 24-12. It will next move to the House floor.

An section-by-section analysis of the full text legislation is here.

MHC

************************

Unfortunately, without any GOP support, this Article I Bill will be DOA in the Senate.

🇺🇸Due Process Forever!

PWS

05-16-21

 

Related posts:

  1. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  2. ⚖️FINALLY, HOUSE TO EXAMINE GARLAND’S DYSFUNCTIONAL, MISMANAGED, LEADERLESS IMMIGRATION “COURTS” & NEED FOR DUE-PROCESS-FOCUSED REFORMS! — Tal Kopan Reports For SF Chron!
  3. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!
  4. 😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse?  — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

🥊EOIR PUMMELED, AGAIN! — Normally “DHS Friendly” 5th Cir. Rejects More Defective NTAs, As EOIR Continues To Reel Under Garland!

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60617.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/defective-nta-remand-at-ca5-urbina-urbina-v-garland#

“This is a consolidated petition seeking review of three orders from the Board of Immigration Appeals (“BIA”), affirming decisions from an immigration judge (“IJ”) denying Petitioners’ motions to reopen. For the reasons set forth below, we VACATE the BIA decision and REMAND for reconsideration. … Statutory notice is the central issue in this case. All three family members argued before the BIA that they did not receive proper notice of the removal hearing, and thus that they should not have been removed in absentia. … The reasoning relied on by the BIA in its holding is now foreclosed by Fifth Circuit precedent. In Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021), we held that “in the in absentia context,” an NTA must consist of “a single document containing the required information” regarding the removal hearing. Id. at 355. Rodriguez controls the outcome of this case because here, as in Rodriguez, the initial NTAs did not contain the date and time of the removal hearings. Id. And here, just as in Rodriguez, the BIA concluded that the deficiency was cured by a “subsequent notice of hearing specifying that information.” Id. The BIA’s conclusion to that effect was an abuse of discretion, as it was based on an erroneous interpretation of a statute. See Barrios-Cantarero, 772 F.3d at 1021. … Accordingly, we VACATE the three BIA decisions and REMAND the three cases for reconsideration in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).”

[Hats off, yet again, to Raed Gonzalez!]

pastedGraphic.png

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

 

*******************

Many congrats to fearless NDPA Superstar 🌟 Raed Gonzalez!

Is this just the “tip of the iceberg” 🧊 for rebukes of EOIR’s lousy “jurisprudence” that continues to be an ungodly mess under Garland?

Count on it! As Raed tells me:

Lots out there, and IJ’s keep on issuing in absentias with defective NTA’s. More lawsuits will be coming soon because of the fake dates and times in an attempt to go around Pereira and Chavez.  Can’t wait!

It’s what happens when Dem Administrations mindlessly put the wrong folks in charge and and fail to give potential progressive judicial talent — brilliant, practical minds committed to due process, fundamental fairness, and best practices — a chance to straighten out the law and bring order, consistency, and integrity to what certainly is the most important (and currently most dysfunctional) “retail level” judicial system in America!

Compare the available, spectacular progressive judicial talent Biden and Garland HAVEN’T appointed to the “Immigration Bench” with the out of bounds, far right, ignore the Constitution and the law, “turn back the clock” poppycock being spewed forth by Justice Alito and his radical right, GOP, Federalist Society trained buddies on the Supremes and elsewhere! The Biden Administration’s failure to bring long overdue, achievable, beneficial reforms and a wave of better judges to EOIR is a stunning “missed opportunity” that now threatens the very foundations of our democracy!

To put it bluntly: If folks like Raed and other “practical scholars and intellectual powerhouses” from the NDPA were in charge of EOIR and on the “Immigration Bench” these problems wouldn’t exist and real progress would be made in reducing the backlog while enhancing due process!

Folks coming before the Immigration Courts would be receiving justice — rather than blithering nonsense — and our country and the world would be better for it!

🇺🇸Due Process Forever!

PWS

05-06-22

Related posts:

  1. ⚖️👍🏼😎LAW YOU CAN USE: Professor Geoffrey Hoffman Tells Us How To Use Niz-Chavez v. Garland To Fight DHS/EOIR’s “Fake Date NTA” Travesty!
  2. ⚠️FIFTH CIRCUIT REMAND IS JUST FIRST OF MANY THAT WILL RESULT FROM BIA’S TOTALLY AVOIDABLE NIZ-CHAVEZ SCREW-UP! — Garland’s Backlog Likely To Mushroom Until He Cleans House @ EOIR! — “Culture of Denial” At BIA Crippling American Justice! — Garland Needs Qualified Judges & Professional Court Administrators @ EOIR, To Replace The “Continuing Clown Show!”🤡
  3. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  4. ☠️👎🏽GARLAND EOIR’S DISTURBINGLY BAD ANALYSIS IN YET ANOTHER ASYLUM CASE “OUTED” BY FIRST CIRCUIT! — Lopez Troche v. Garland

👎🏽🤮AIMLESS DOCKET RESHUFFLING (“ADR”) @ GARLAND’S EOIR SCREWS 🔩ASYLUM SEEKERS WITH LONG-PENDING “SLAM DUNK” 🏀 CASES: “So if we can actually get to a hearing, it is still possible to win. This is the hope we all need to hold on to, but it would be much easier and much fairer if the system had a modicum of respect for the people it purports to serve.”

Jason Dzubow
Jason Dzubow
The Asylumist

From Jason “The Asylumist” Dzubow:

https://www.asylumist.com/2022/04/27/aaaaaaaaaaaaaaaaaaaaah/

Let me tell you about some recent events in my office.

We had two cases set for individual hearings this week. Both cases involve noncitizens who have been waiting years for their decisions, both have family members abroad who they hope to bring to the U.S. if their claims are successful, and both have strong cases for asylum.

For the first case, we prepared and submitted evidence earlier in the pandemic, but the case was postponed at the last minute due to Covid. We were hoping that the new date would stick, given that restrictions are easing and the court now has a system to do cases remotely (called Webex). As the date approached, we filed additional evidence and scheduled two practice sessions for the client. We also regularly checked the Immigration Court online portal, which lists our court dates, to be sure the case was still on the docket.

pastedGraphic.png

“Your asylum case is cancelled. Again.”

The second case has also been pending for years. The respondent (the noncitizen in court) is from Afghanistan, and such cases are supposedly receiving priority treatment. So at the Master Calendar Hearing, the Immigration Judge (“IJ”) asked us to be sure to talk to DHS prior to the hearing, presumably in the hope that we would come to an agreement about relief. The IJ also scheduled the hearing for a relatively short time slot in anticipation of a possible uncontested hearing. As with the first case, we filed all the evidence and scheduled the practices.

Both respondents had been in touch with their families overseas and both had talked to their relatives about hopefully reuniting soon.

Then – surprise! – we checked the Immigration Court portal and noticed that both cases had disappeared from the docket. Since the portal pages are sometimes screwy, and since court dates are constantly changing, we decided to wait a bit to see whether the dates reappeared. Informing clients about court delays is always fraught, and can even be traumatic for the clients and their families, who have a lot invested in these dates. So it is better not to inform the client until we are sure a date is canceled.

After some hours, we decided to tell the first client. We had a practice session scheduled for that afternoon, and it would waste time to prepare for a hearing that was not going forward. I called the client and informed him, and as I have often experienced before, he was upset and confused. Why had the case been postponed? Was it something about him or his case? Or was it something about the Court? I could at least inform him that we had two cases canceled on the same date (from two different IJs), and so he should understand that the cancellation was not related to him personally. That is obviously cold comfort, but I guess it is better than nothing. I know it was very upsetting for him to receive this news. It was emotionally exhausting for me as well.

For the next two days, this client kept checking the online court system to see whether anything changed. Then – surprise again! – the case re-appeared on the docket for the same old day and time!

I called the court to confirm, and the clerk told me that the case had been removed by accident, and that it was back on! How lucky! The client told me how upset he had been. He hadn’t been able to sleep or eat. He did not even inform his family back home, as he feared they would not understand or would not believe him. We rescheduled the two practice sessions and mentally re-prepared to go forward.

The next day – surprise again again! – I received a message from the court. The case was definitely off. The clerk apologized for the confusion, and told me that the matter would be set for a date in the future. It would be inappropriate for me to publish here the words that came from my mouth after receiving this message, but let’s just say that I was somewhat agitated. I called the clerk and left a message informing the court how harmful this whole process had been to the respondent, how upset he was, and how he had not seen his family members for years. I also mentioned how upsetting the experience had been for me.

I should say that I do not blame the clerk. He is actually very nice and very responsive (he actually called back and said he will try to get us a new date as soon as possible). The problem is “the system” and complaining to the system is about as effective as punching the ocean. No one is ever responsible, and so there is no one who can be held accountable.

As for client number two, at least he did not suffer the on-again, off-again fate of our first client. But he and his family members were also very upset, and given the IJ’s intention of scheduling the hearing quickly because the respondent is Afghan, it is particularly frustrating that a likely approval should be pushed off until who-knows-when.

What now? For both cases, we will wait a bit to see if new dates appear. Maybe they will. If not, we will file motions to advance, and we will try to get earlier dates. All this is more expense and wasted time for the clients, more work for us, and more work for the court, which will have to review our filings. Last year, I wrote about the harm caused by cancelled hearings, and–despite the easing pandemic and the wide-spread availability of Webex–the problem persists. I’ve mentioned just two cases here, but we see this again and again and again. Not in every case, but it’s common enough that we can never be confident that any particular case will go forward, which makes it much more difficult for respondents and attorneys to prepare for court.

While the situation is bleak, I should mention that the news is not all bad. We are still having some successes. For example, over my Spring Break, I litigated a Syrian case (remotely, with very questionable internet, and in what I believe is the first Immigration Court case in the history of Shickshinny, Pennsylvania). Although it was a close case and DHS generally opposed relief, the IJ explained his reasons for granting and DHS agreed not to appeal. And just yesterday, my client from Pakistan received asylum after a contested hearing. DHS did not appeal.

So if we can actually get to a hearing, it is still possible to win. This is the hope we all need to hold on to, but it would be much easier and much fairer if the system had a modicum of respect for the people it purports to serve.

*******************

Thanks, Jason, for your clear and compelling description of the toxic human and systemic effects of Garland’s continuing “ADR” at EOIR!

Contrary to the “nativist false narrative” promoted under Administrations of both parties, those suffering in the inexcusable EOIR backlog are NOT “evading deportation.” Many, probably the majority, are individuals who are eligible to, and should be granted, the ability to remain in the U.S.

This is particularly true of asylum applicants. Even with a system improperly skewed against them, asylum applicants were winning the majority of their EOIR court cases as recently as FY 2012.

Despite worsening conditions since then in almost all “sending countries,” that rate cratered by about 50% during the Trump regime. It’s fairly obvious that the increased denial rates resulted from perversions of the law, ADR, and an intentional “dumbing down” of both the administrative law and EOIR personnel at all levels.

Garland has taken, at best, “baby steps” to improve the Immigration Courts. He’s merely “nibbling at the edges” where radical house cleaning 🧹and progressive reforms ⚖️ were absolutely necessary, recommended by experts, and achievable — at least had Garland “hit the ground running!”

EOIR should long ago have been replaced with an independent Article I Immigration Court based on the principles of fairness, scholarship, timeliness, respect, teamwork, and most of all, an overriding unswerving commitment to due process and best practices. Judges and administrators should be selected competitively, with private bar input, and exclusively on a merit basis from among those who have demonstrated expertise in immigration and human rights.

As long as EOIR inappropriately continues to reside in the U.S. Department of Justice, there should never, NEVER, again be another Attorney General who does not possess significant experience representing individuals in Immigration Court — the fundamental “retail level” of our entire justice system. Garland ‘s failure to “get the job done for due process and equal justice” — not even close — is “Exhibit A” in what happens when the wrong person is appointed to oversee the Immigration Courts!

At a time when America needed enlightened, inspirational, informed, and courageous legal and ethical leadership for the Immigration Courts, Garland has been “MIA!” American justice, at all levels, is paying the heavy price!☹️

Alfred E. Neumann
Merrick Garland: “What, me worry? I’ve spent my entire law career in the ‘ivory tower.’ What’s ‘aimless docket reshuffling?’ Who cares about asylum seekers?”
PHOTO: Wikipedia Commons

🇺🇸Due Process Forever!

PWS

05-04-22

Related posts:

  1. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  2. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  3. NDPA STALWART JASON “THE ASYLUMIST” DZUBOW 🌟 QUOTED IN AP ARTICLE ABOUT REPEAL OF A-B- & L-E-A-!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

⚖️👍😎NDPA+: “RESEARCH YOU CAN USE!” — NEW STUDY PROVIDES UNIQUE INSIGHTS, PRACTICAL GUIDANCE ON USE OF PSYCHOLOGICAL ASSESSMENTS & AFFIDAVITS IN IMMIGRATION COURT!

 

http://jaapl.org/content/early/2022/04/20/JAAPL.210075-21

Immigration Judges’ Perceptions of Telephonic and In-Person Forensic Mental Health Evaluations

Aliza S. Green, Samuel G. Ruchman, Beselot Birhanu, Stephanie Wu, Craig L. Katz, Elizabeth K. Singer and Kim A. Baranowski

Journal of the American Academy of Psychiatry and the Law Online April 2022, JAAPL.210075-21; DOI: https://doi.org/10.29158/JAAPL.210075-21

Abstract

Clinicians affiliated with medical human rights programs throughout the United States perform forensic evaluations of asylum seekers. Much of the best practice literature reflects the perspectives of clinicians and attorneys, rather than the viewpoints of immigration judges who incorporate forensic reports into their decision-making. The purpose of this study was to assess former immigration judges’ perspectives on forensic mental health evaluations of asylum seekers. We examined the factors that immigration judges use to assess the affidavits resulting from mental health evaluations and explored their attitudes toward telehealth evaluations. We conducted semistructured interviews in April and May 2020 with nine former judges and systematically analyzed them using consensual qualitative research methodology. Our findings were grouped in five domains: general preferences for affidavits; roles of affidavits in current legal climate; appraisal and comparison of sample affidavits; attitudes toward telephonic evaluations; and recommendations for telephonic evaluations. Forensic evaluators should consider the practice recommendations of judges, both for telephonic and in-person evaluations, which can bolster the usefulness of their evaluations in the adjudication process. To our knowledge, this is the first published study to incorporate immigration judges’ perceptions of forensic mental health evaluations, and the first to assess judges’ attitudes toward telephonic evaluations.

Across the United States, clinicians working in collaboration with medical asylum clinics and torture treatment programs conduct forensic evaluations of asylum seekers.1,–,5 In such evaluations, clinicians investigate the physical and psychiatric sequelae of human rights abuses and document their findings in medico-legal affidavits that are submitted to the immigration judge as part of an individual’s application for immigration relief.1,6,7 The affidavits provide the evaluators’ written testimony explaining to a judge the relevance of their findings (e.g., the impact of trauma on memory). Medical providers experienced in conducting forensic evaluations have worked in consultation with attorneys to establish and disseminate best-practice guidelines for evaluations.6,–,10 Much of the best-practice literature reflects the perspectives of clinicians and attorneys, rather than the viewpoints of immigration judges who apply forensic reports in their decision-making. (One notable exception was a presentation of suggestions for writing medico-legal affidavits based on a qualitative study of a sample that included immigration judges, clinicians, and attorneys.11) As a result, forensic medical evaluators have limited insight into how immigration judges view the content of affidavits or how the documentation of forensic evaluations affects asylum cases.

In the context of the COVID-19 pandemic, medical human rights programs have transitioned to conducting forensic evaluations by telephone or video.12,13 Forensic clinicians have also been using telehealth modalities to evaluate asylum seekers who have poor access to forensic services because they live in geographically remote areas of the United States, immigration detention centers, or Mexico border cities.14 Mental health practitioners have reported both comfort with and concerns about the limitations of telehealth forensic evaluations.15 Most literature on telehealth forensic evaluations has focused on evaluators’ perceptions of video-teleconference, applied across multiple dimensions of forensic mental health.16,–,20 Assessing the acceptability of remote evaluations to adjudicators of immigration claims and incorporating their perspectives into broader practice recommendations is particularly critical at this time, given that telehealth visits and telephonic interviews of asylum seekers have become standard as a result of both the COVID-19 pandemic and the increased number of asylum seekers in immigration detention facilities.

This study was to explore former immigration judges’ perspectives on forensic mental health evaluations of asylum seekers. We examined the factors that immigration judges use to assess the medico-legal documents resulting from mental health evaluations. We also specifically identified participants’ attitudes and perceptions toward telehealth evaluations. This study adds to existing literature by incorporating immigration judges’ perceptions of forensic mental health evaluations and by assessing judges’ attitudes toward telephonic evaluations. We specifically investigated telephonic rather than video-based evaluations because asylum seekers may have limited access to the internet, and immigration detention centers often restrict access to video conferencing platforms.14 This study was approved by the Mount Sinai Institutional Review Board.

************************

Full article at the above link.

This should be great information for practitioners, judges, ICE counsel, and administrators seeking a fairer, better functioning Immigration Court system.

This illustrates one of many “under-appreciated” aspects of modern immigration and human rights “practical scholarship:” Its virtually unmatched interdisciplinary usefulness and its “right off the shelf” ability to advance knowledge, fairness, 21st century efficiency, and best practices!

While EOIR might actually be “worse than your father’s and mother’s Immigration Courts,” not so the private bar, NGOs, and the academic (particularly the clinical) sectors! It’s where the action, upcoming talent, and quality is right now!

It’s a shame that more of those in charge of the Immigration Courts, the stumbling immigration bureaucracy, and the often behind the times “improperly above the fray” Article IIIs aren’t paying attention to both the types of individuals they should be hiring and the methods they should be using to improve the delivery of justice. 

If change has to come from below, so be it! But, change and progress will eventually come to the broken and dysfunctional Immigration Courts and the bumbling bureaucracy surrounding and enabling this disgraceful systemic failure that is dragging down both our legal system and our democracy!

🇺🇸Due Process Forever!

PWS

04-25-22

Related posts:

  1. 😎👍🏼⚖️🗽MORE TIMELY NDPA ASYLUM TRAINING — Feb. 25-26 — Register Now!
  2. DUH OF DA DAY: White Nationalist Agenda, Anti-Asylum Gimmicks, Grotesque Mal-Administration Leads To Longer Waiting Times @ Disastrously Dysfunctional EOIR 🤮 — Biden-Harris Administration Must End America’s Disgraceful Star Chambers ⚰️!
  3. ⚖️🌟🗽NDPA SUPERSTARS, PRACTICAL EXPERT PROFESSORS LINDSAY M. HARRIS AND SARAH R. SHERMAN-STOKES SCORE BIDEN ADMINISTRATION’S CONTINUED RELIANCE ON BOGUS 🏴‍☠️ TRUMP-ERA, WHITE NATIONALIST COVID-19 RESTRICTIONS TO RETURN REFUGEES TO DANGER & DEATH @ SOUTHERN BORDER!☠️🤮⚰️
  4. ⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

⚖️RICHARD HERMAN @ IMMIGRATIONPROF BLOG:  PD IS KEY! 🗝 But, It Also Requires A More Active Role By EOIR To Get The “Debilitating Deadwood” Off The Dockets!

https://lawprofessors.typepad.com/immigration/2022/04/guest-post-richard-herman-ice-issues-new-guidance-on-prosecutorial-discretion.html

. . . . .

The Bottom Line

The latest guidelines of ICE are welcomed by the American Immigration Lawyers Association (AILA). The memo will allow prosecutors to resolve cases immediately. It will help in reducing the backlog in immigration court proceedings. Thousands of people are waiting in line for years to get asylum or a green card. The Doyle Memorandum offers clear guidelines for prosecutors.

In the past, ICE Prosecutors have not always closely adhered to PD memos issued by OPLA.  In addition, federal courts have, at times, intervened and enjoined prosecutorial discretion policies by ICE.

But one thing is clear.  With nearly 1.7 million cases currently pending in immigration courts and the Board of Immigration Appeals, let’s hope that ICE Prosecutors will “do justice,” conserve scarce administrative resources best used against high priority cases, and remove low priority cases from the deportation process.  This will not only make the U.S. a more safe and equitable nation, but will help keep peaceful and hardworking families together.

On May 12, 2022, ICE Principal Legal Advisor Kerry Doyle and ICE Detroit Chief Counsel Tara Harris will hold a community meeting with interested legal services providers, non-governmental organizations (NGOs), and community stakeholders who work with immigrant communities in Michigan and Ohio.

This meeting presents a unique opportunity to hear directly from PLA Doyle on her recently issued guidance to ICE attorneys on enforcing the civil immigration laws and prosecutorial discretion.  It is anticipated that specific guidance on process will be provided.

For more information on how to submit a request for PD, please see the ICE Website.

Richard Herman is a nationally renowned immigration lawyer, author, and activist.  He has dedicated his life to advocating for immigrants and helping change the conversation on immigration.  He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”  He is the co-author of the acclaimed book, Immigrant, Inc. Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009).  Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek. He serves as counsel to the Consulate of Mexico, Michigan/Northern Ohio.

*********************

Read the rest of Richard’s outstanding and very informative analysis at the link.

It’s critical that Immigration Judges and the BIA take an active role in “encouraging and motivating” parties to maximize the use of PD. One possible tool is proactively closing certain types of cases without waiting for motions.

For example, the modest step of granting TPS to Cameroonians in the U.S. (https://immigrationcourtside.com/2022/04/16/%f0%9f%97%bdbiden-administration-grants-tps-to-cameroonians-a-modest-step-forward-it-also-illustrates-the-horrible-illegality-immorality-of-the-biden-administrations-co) and the just announced TPS for Ukrainians (https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/tps-for-ukraine-advance-copy) offers EOIR an opportunity to simply close these non-detained cases (except ones with pending criminal charges) without waiting for the parties.  

Either party that wants the case back on the docket can, of course, make a motion to redocket. Based on my experience with several past similar programs at the BIA, I anticipate that such motions would be relatively rare. Moreover, I would be reluctant to “redocket” a case without a joint agreement from the parties that it will be resolved in a “short hearing,” or a compelling reason to proceed in Immigration Court (e.g., the respondent failed to apply, committed a crime, or was denied TPS).

It’s going to take teamwork, cooperation, and creative thinking among the parties and the courts to get dockets back in shape so that Immigration Judges can do their jobs in something “approaching real time.” 

PD could be the key to success; or, it could become just another in the long line of things that looked good on paper but never achieved full potential. Time, and the efforts of all parties concerned to solve the problem in the most constructive and practical ways possible, will tell.

🇺🇸Due Process Forever!!

PWS

04-18-22

Related posts:

  1. 🗽⚖️ “COURTSIDE” IN THE NEWS: BOTH NOLAN @ THE HILL & KEVIN @ IMMIGRATIONPROF BLOG HIGHLIGHT MY BLISTERING ANALYSIS OF BIDEN’S FIRST-YEAR IMMIGRATION POLICIES! — Garland’s Monumental EOIR Fail Writ Large Among “Underreported News” Of 2021 — Mishandling Of Immigration Courts Creates Key “Enthusiasm Gap” Among Progressives Heading Into 2022 Midterms!
  2. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  3. 💡WASHPOST EDITORIAL PRAISES MAYORKAS’S “COMMON SENSE” APPROACH TO PROSECUTORIAL DISCRETION!— But, Garland Has Failed To “Leverage” It In His Dysfunctional & “Uber Backlogged” Immigration Courts!🤯
  4. EOIR ISSUES TOOTHLESS 😶 GUIDANCE ON ICE PROSECUTORIAL DISCRETION — Obvious Problem — Failure To Repeal Sessions’s Abominable ☠️ Matter of Castro-Tum — Remains Unaddressed In Garland’s Failed “Courts” That Aren’t “Courts” At All By Any Reasonable Measure!🤡

💤😴GARLAND DOZES AS COURTS CRUMBLE!☠️

Rip Van Winkle
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”
Scott Bixby
Scott Bixby
National Reporter
The Daily Beast

 

 

https://www.thedailybeast.com/fatally-flawed-immigration-court-system-should-be-taken-out-of-its-misery

Scott Bixby reports for The Daily Beast:

As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.

But breaking the system might be the only way to save it.

On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”

But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.

“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”

One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”

“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”

Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.

“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.

“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”

With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.

That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.

The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.

But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.

“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”

….

*****************************

Read Scott’s full article at the link.

One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.

White Nationalists Jeff  “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog. 

As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!

While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!

But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.

One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges! It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster. 

What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.

Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.

Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!

There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!

There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!

A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.

Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as his  broken “court” system veers off the road and goes down the embankment.

It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.

But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.

🇺🇸Due Process Forever!

PWS

04-14-22

Related posts:

  1. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!
  2. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  3. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

🧑🏻‍⚖️EOIR: GARLAND TAPS JUDGE MARY CHENG FOR EOIR DEPUTY DIRECTOR — Potential Enlightened Leader Or Just Another “Go Along To Get Along Bureaucrat?”

Here’s the announcement:

https://www.justice.gov/eoir/pr/eoir-announces-appointment-mary-cheng-deputy-director

JUSTICE NEWS

Department of Justice

Executive Office for Immigration Review

FOR IMMEDIATE RELEASE

Monday, April 11, 2022

EOIR Announces Appointment of Mary Cheng as Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Mary Cheng as the agency’s Deputy Director. Judge Cheng has served EOIR since 2009, including as a Deputy Chief Immigration Judge for the past five years.

“Judge Cheng brings a welcome combination of experience and expertise, preparing her for certain success as EOIR’s deputy director,” EOIR Director David L. Neal said. “Her experience on the immigration bench, her expertise as a managing judge, and her appreciation for the view from both counsels’ tables perfectly position her to help lead the agency to a reinvigorated commitment to our mission and to public service.”

As Deputy Director, Judge Cheng will assist Director Neal in supervising and managing all EOIR components, and developing and implementing agency policies and short- and long-term strategies.

Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002. Judge Cheng received her Bachelor of Arts from New York University and a Juris Doctor from the New York Law School. She is a member of the New York State Bar.

****************

Judge Cheng had a 71.5% asylum grant rate while on the bench in NYC. That makes her an “outlier” (in a good way) among EOIR HQ “honchos” with significant Immigration Court experience.

Judge Cheng spent two years in the private practice of  immigration law, albeit several decades ago, as well as serving as a JLC at the NY Immigration Court and an ICE prosecutor. So, she has a more “balanced perspective” on the system than many in EOIR.

Interestingly, Judge Cheng’s record on asylum cases is the “inverse” of the nationwide rate, where 2/3 of the asylum cases are denied and many IJs disgracefully reject almost every asylum case coming before them. So, she knows the system is broken, biased, unfair, and unprofessional! 

The question is whether she will use her knowledge and skills to stand up for due process and fair treatment of asylum seekers? Or, will she become another in the long line of EOIR “go along to get along bureaucrats” — willing to sacrifice immigrants’ lives for job security and career advancement?

Hopefully, Judge Cheng will implement some “attitude changes” in an agency still far too committed to the Sessions/Barr “culture of denial” and to misusing, abusing, and mismanaging the Immigration Courts as a “deterrent” — carrying out Administration enforcement “priorities” —  rather than acting as an independent court system using “enlightened practical scholarship” to guarantee due process and fundamental fairness for the individuals coming before it. EOIR has lost sight of its mission and Garland doesn’t seem interested in or capable of changing that. 

As for the “certain success,” predicted by Director Neal, that’s been elusive for some previous Deputy Directors. Three previous Deputies have gone on to become EOIR Director: The late Kevin Rooney, Judge Kevin Ohlson, and the late Juan Osuna. But, “success” in an organization in failure that lacks a dynamic plan for long overdue fundamental personnel, procedural, and structural reforms looks like a tall order. It’s probably  “Mission Impossible!”

The only true measure of “success” is whether the community that EOIR is supposed to serve comes to view the courts as fair, humane, and professional. That depends on changing the results of EOIR’s anti-asylum, often anti-immigrant “assembly line” approach to justice and its chronic, backlog-building  “Aimless Docket Reshuffling” produced by attempting to please DOJ politicos at the expense of justice. Bureaucratic metrics and bogus DOJ and Administration political goals and agendas are meaningless in the “real world.”

What kind of “short and long-term strategies” will work in a struggling “court” system plagued by a burgeoning 1.8 million case backlog, endemic “Aimless Docket Reshuffling,” an appellate body stuck in reverse, a byzantine “agency management” structure, institutionalized “worst practices,” and too many judges who were the product of a poor selection process and inadequate training? There are some measures that potentially could succeed. But, “Team Garland” has pointedly ignored them with predictably bad consequences. 

No one person can change the disastrous trajectory of EOIR. But, someone willing to take risks and give due process and fundamental fairness a chance could make a difference in the lives of the most vulnerable among us. Could Judge Cheng be that person? We’ll see.

🇺🇸Due Process Forever!

PWS

04-13-22

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  2. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

😎🗽⚖️ NDPA SUPERRSTAR 🌟 STACY TOLCHIN WINS EQUITABLE TOLLING CASE IN 5TH CIR! — BOCH-SABAN V. GARLAND (Published) — What if . . . . 

Stacy Tolchin
Stacy Tolchin ESQ
Law Office of Stacy Tolchin
Pasadena, CA
PHOTO: Website

https://www.ca5.uscourts.gov/opinions/pub/20/20-60540-CV0.pdf

Key Quote:

Whatever the merits of Liadov were at the time it was issued, the Supreme Court has since made quite clear that only statutes that are set forth to be construed as jurisdictional are, in fact, jurisdictional. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017) (“‘[M]andatory and jurisdictional’ is erroneous and confounding terminology where, as here, the relevant time prescription is absent from the U.S. Code.”). Among others, the Second and Ninth Circuits have held, subsequent to Liadov, that the thirty-day BIA appeal filing rule is non-jurisdictional and subject to equitable tolling. See Attipoe v. Barr, 945 F.3d 76, 78–80 (2d Cir. 2019) (“Liadov is at odds with precedent in this Circuit and in others, as well with the Supreme Court’s repeated admonition not to treat claim-processing rules—such as the filing deadline in 8 C.F.R. § 1003.38—as jurisdictional.”); Irigoyen-Briones v. Holder, 644 F.3d 943, 946–48 (9th Cir. 2011). We agree with, and adopt, these courts’ reasoning. The BIA has the jurisdiction to hear the case if Boch-Saban establishes equitable tolling, an issue that the BIA should address in the first instance. For these reasons, we remand this case to the BIA to determine whether Boch-Saban proved entitlement to equitable tolling.

**************************

Case started 17 years ago. R has been married to USC for 9 years. 5 years ago, the DHS agreed that the case should be terminated to allow the respondent to pursue an IV.

What if IJs routinely granted joint motions like this?

What if they were encouraged to do so?

What if the “best practice” in Immigration Court were to encourage maximum use of joint agreements by the parties?

What if the BIA actually encouraged and enforced “best practices?”

What if long residence and being eligible for legal immigration were consistently treated as  “compelling equities.”

Wouldn’t those be “painless methods” for reducing the 1.7 million case backlog without gimmicks or stomping on anyone’s rights?

What if “practical scholar-litigators” like Stacy (a “complex litigation specialist”), who understand and have experienced the “dynamics” of Immigration Courts, were selected to become Immigration Judges and Appellate Immigration Judges?

🇺🇸 Due Process Forever!

PWS

04-10-22

Related posts:

  1. ⚖️5TH CIRCUIT BELATEDLY “OUTS” IJ AGNELIS REESE (NOW RETIRED) FOR 99.5% ASYLUM DENIAL RECORD —  “We find it likely that a ‘reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.’” Inexplicably Garland & Co. Let Other “Asylum Deniers Club” Members Continue to Wreak Havoc On Asylum Seekers, Their Lawyers, & The Entire U.S. Justice System!🤮
  2. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!